This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1096
State of Minnesota, Respondent,
vs.
Laco Knockola West, Appellant.
Filed September 12, 2016 Affirmed Halbrooks, Judge
Washington County District Court File No. 82-CR-14-3624
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Stillwater, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Jesson, Presiding Judge; Halbrooks, Judge; and
Hooten, Judge. UNPUBLISHED OPINION
HALBROOKS, Judge
Appellant challenges his conviction of felony violation of an order for protection
(OFP), arguing that the cumulative effect of several alleged errors deprived him of his
due-process right to a fair trial. We affirm.
FACTS
On March 28, 2014, the district court issued an emergency ex parte OFP against
appellant Laco Knockola West. The OFP prohibited West from having contact with his
ex-girlfriend, A.L., “whether in person, with or through other persons, by telephone, mail,
e-mail, through electronic devices, social media, or by any other means.” The district
court granted the OFP for a minimum of two years.
From August 6, 2014, to August 23, 2014, West sent approximately 48 text
messages to A.L. The text messages mainly consisted of incoherent ramblings in which
West discussed his opinions regarding A.L. and the OFP, his children, and sexually
explicit song lyrics that he wrote. In some of the text messages, West referred to himself
as L.C., which is his nickname. West also left two voicemail messages for A.L. during
this time period.
A.L. initially delayed going to the police because she “was hoping [West] would
go away.” But after thinking about it and speaking with her family, A.L. went to the
police department to report West’s contact with her.
The state subsequently charged West with one count of felony violation of an
OFP. The jury heard the foregoing evidence at trial. Deputy Timothy Schmidtke
2 testified that he personally served the OFP on West while West was incarcerated at the
Minnesota Correctional Facility in Faribault. The district court also allowed the
prosecutor to introduce relationship evidence under Minn. Stat. § 634.20 (2014) over
West’s objection. West chose not to testify after the district court ruled that the
prosecutor would be allowed to impeach him with three prior convictions if he testified.
The jury found West guilty. This appeal follows.
DECISION
I.
West argues that the district court committed reversible plain error by not
providing a specific unanimity instruction to the jury because the jury heard evidence of
multiple acts that violated the OFP. West’s counsel neither objected nor proposed that
the district court should instruct the jury that it had to agree unanimously on which
specific incident violated the OFP. A defendant’s failure to propose a specific jury
instruction generally constitutes a forfeiture of that issue on appeal. State v. Vance, 734
N.W.2d 650, 654 (Minn. 2007). But appellate courts have discretion to consider a claim
of unobjected-to error “if there was plain error affecting substantial rights or an error of
fundamental law in the jury instructions.” State v. Crowsbreast, 629 N.W.2d 433, 437
(Minn. 2001) (quotation omitted). Under the plain-error doctrine, West must show that
there was (1) an error, (2) that the error was plain, and (3) that it affected his substantial
rights. State v. Taylor, 869 N.W.2d 1, 15 (Minn. 2015). Even if West satisfies these
three prongs, we may reverse his conviction only if the error “seriously affect[s] the
3 fairness, integrity, or public reputation of judicial proceedings.” Id. (alteration in
original) (quotation omitted).
A jury must unanimously find that the prosecutor proved each element of the
charged offense in order to find the defendant guilty. State v. Dalbec, 789 N.W.2d 508,
511 (Minn. App. 2010), review denied (Minn. Dec. 22, 2010). And “the jury must
unanimously agree on which acts the defendant committed if each act itself constitutes an
element of the crime.” State v. Stempf, 627 N.W.2d 352, 355 (Minn. App. 2001). “But
the jury need not always decide unanimously which of several possible sets of underlying
brute facts make up a particular element, [such as] which of several possible means the
defendant used to commit an element of the crime.” Dalbec, 789 N.W.2d at 511
(alteration in original) (quotation omitted).
West relies on Stempf to support his argument. In Stempf, the state charged the
defendant with one count of drug possession but alleged two distinct acts to support the
conviction: that he possessed methamphetamine at his workplace and that he possessed
methamphetamine in a truck. 627 N.W.2d at 357. This court concluded that Stempf was
deprived of his right to a unanimous verdict because the state did not elect which act of
possession it relied on for the conviction. Id. at 358. As a result, the jurors may have
disagreed on which act of possession constituted that element of the crime. Id. This
court further concluded that “[t]he two acts alleged in this case lack unity of time and
place; they are separate and distinct culpable acts, either one of which could support a
conviction.” Id. at 358-59. This court therefore reversed and remanded for further
4 proceedings because it was “possible that the jury’s verdict of guilty was not unanimous.”
Id. at 359.
In addition to being completely different factually, West’s case is distinguishable
from Stempf in two critical ways. First, the district court in Stempf refused to give a
specific unanimity instruction after Stempf requested the instruction. Id. at 357-58.
Here, West did not request a specific unanimity instruction. Second, in Stempf, the act of
possession was an element of the crime, not merely a means of proving the element of
possession, so the jury had to agree unanimously on one act of possession that had been
proved beyond a reasonable doubt. Id. at 357; see Dalbec, 789 N.W.2d at 512
(discussing Stempf). Here, one of the elements that the state needed to prove was that
West violated the OFP. See Minn. Stat. § 518B.01, subd. 14(b) (2014). The OFP
prohibited West from contacting A.L. by phone or “any other means.” “[T]he two acts in
Stempf were elements of the crime, whereas [appellant’s] actions in this case were mere
means for accomplishing an element.” State v. Infante, 796 N.W.2d 349, 357 (Minn.
App. 2011). Any one of West’s text messages or voicemails constituted a means by
which he committed the element of violating the OFP. And the jurors did not have to
agree unanimously on the means that West used to commit this element. We therefore
conclude that no error exists here.
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A15-1096
State of Minnesota, Respondent,
vs.
Laco Knockola West, Appellant.
Filed September 12, 2016 Affirmed Halbrooks, Judge
Washington County District Court File No. 82-CR-14-3624
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Pete Orput, Washington County Attorney, Nicholas A. Hydukovich, Stillwater, Minnesota (for respondent)
Cathryn Middlebrook, Chief Appellate Public Defender, Sara L. Martin, Assistant Public Defender, St. Paul, Minnesota (for appellant)
Considered and decided by Jesson, Presiding Judge; Halbrooks, Judge; and
Hooten, Judge. UNPUBLISHED OPINION
HALBROOKS, Judge
Appellant challenges his conviction of felony violation of an order for protection
(OFP), arguing that the cumulative effect of several alleged errors deprived him of his
due-process right to a fair trial. We affirm.
FACTS
On March 28, 2014, the district court issued an emergency ex parte OFP against
appellant Laco Knockola West. The OFP prohibited West from having contact with his
ex-girlfriend, A.L., “whether in person, with or through other persons, by telephone, mail,
e-mail, through electronic devices, social media, or by any other means.” The district
court granted the OFP for a minimum of two years.
From August 6, 2014, to August 23, 2014, West sent approximately 48 text
messages to A.L. The text messages mainly consisted of incoherent ramblings in which
West discussed his opinions regarding A.L. and the OFP, his children, and sexually
explicit song lyrics that he wrote. In some of the text messages, West referred to himself
as L.C., which is his nickname. West also left two voicemail messages for A.L. during
this time period.
A.L. initially delayed going to the police because she “was hoping [West] would
go away.” But after thinking about it and speaking with her family, A.L. went to the
police department to report West’s contact with her.
The state subsequently charged West with one count of felony violation of an
OFP. The jury heard the foregoing evidence at trial. Deputy Timothy Schmidtke
2 testified that he personally served the OFP on West while West was incarcerated at the
Minnesota Correctional Facility in Faribault. The district court also allowed the
prosecutor to introduce relationship evidence under Minn. Stat. § 634.20 (2014) over
West’s objection. West chose not to testify after the district court ruled that the
prosecutor would be allowed to impeach him with three prior convictions if he testified.
The jury found West guilty. This appeal follows.
DECISION
I.
West argues that the district court committed reversible plain error by not
providing a specific unanimity instruction to the jury because the jury heard evidence of
multiple acts that violated the OFP. West’s counsel neither objected nor proposed that
the district court should instruct the jury that it had to agree unanimously on which
specific incident violated the OFP. A defendant’s failure to propose a specific jury
instruction generally constitutes a forfeiture of that issue on appeal. State v. Vance, 734
N.W.2d 650, 654 (Minn. 2007). But appellate courts have discretion to consider a claim
of unobjected-to error “if there was plain error affecting substantial rights or an error of
fundamental law in the jury instructions.” State v. Crowsbreast, 629 N.W.2d 433, 437
(Minn. 2001) (quotation omitted). Under the plain-error doctrine, West must show that
there was (1) an error, (2) that the error was plain, and (3) that it affected his substantial
rights. State v. Taylor, 869 N.W.2d 1, 15 (Minn. 2015). Even if West satisfies these
three prongs, we may reverse his conviction only if the error “seriously affect[s] the
3 fairness, integrity, or public reputation of judicial proceedings.” Id. (alteration in
original) (quotation omitted).
A jury must unanimously find that the prosecutor proved each element of the
charged offense in order to find the defendant guilty. State v. Dalbec, 789 N.W.2d 508,
511 (Minn. App. 2010), review denied (Minn. Dec. 22, 2010). And “the jury must
unanimously agree on which acts the defendant committed if each act itself constitutes an
element of the crime.” State v. Stempf, 627 N.W.2d 352, 355 (Minn. App. 2001). “But
the jury need not always decide unanimously which of several possible sets of underlying
brute facts make up a particular element, [such as] which of several possible means the
defendant used to commit an element of the crime.” Dalbec, 789 N.W.2d at 511
(alteration in original) (quotation omitted).
West relies on Stempf to support his argument. In Stempf, the state charged the
defendant with one count of drug possession but alleged two distinct acts to support the
conviction: that he possessed methamphetamine at his workplace and that he possessed
methamphetamine in a truck. 627 N.W.2d at 357. This court concluded that Stempf was
deprived of his right to a unanimous verdict because the state did not elect which act of
possession it relied on for the conviction. Id. at 358. As a result, the jurors may have
disagreed on which act of possession constituted that element of the crime. Id. This
court further concluded that “[t]he two acts alleged in this case lack unity of time and
place; they are separate and distinct culpable acts, either one of which could support a
conviction.” Id. at 358-59. This court therefore reversed and remanded for further
4 proceedings because it was “possible that the jury’s verdict of guilty was not unanimous.”
Id. at 359.
In addition to being completely different factually, West’s case is distinguishable
from Stempf in two critical ways. First, the district court in Stempf refused to give a
specific unanimity instruction after Stempf requested the instruction. Id. at 357-58.
Here, West did not request a specific unanimity instruction. Second, in Stempf, the act of
possession was an element of the crime, not merely a means of proving the element of
possession, so the jury had to agree unanimously on one act of possession that had been
proved beyond a reasonable doubt. Id. at 357; see Dalbec, 789 N.W.2d at 512
(discussing Stempf). Here, one of the elements that the state needed to prove was that
West violated the OFP. See Minn. Stat. § 518B.01, subd. 14(b) (2014). The OFP
prohibited West from contacting A.L. by phone or “any other means.” “[T]he two acts in
Stempf were elements of the crime, whereas [appellant’s] actions in this case were mere
means for accomplishing an element.” State v. Infante, 796 N.W.2d 349, 357 (Minn.
App. 2011). Any one of West’s text messages or voicemails constituted a means by
which he committed the element of violating the OFP. And the jurors did not have to
agree unanimously on the means that West used to commit this element. We therefore
conclude that no error exists here. West was not denied his right to a unanimous verdict.
II.
West contends that the district court abused its discretion by allowing the state to
introduce relationship evidence under Minn. Stat. § 634.20. The district court allowed
A.L. to testify that West violated multiple past OFPs by contacting her and coming to her
5 home or place of employment. A.L. also testified about a specific incident in which West
violated an OFP by breaking into A.L.’s home, threatening to kill her, and punching her
multiple times in the face. The district court allowed the state to introduce photographs
of A.L.’s face that were taken after this incident. The photographs depict A.L.’s bruised,
bloody, and swollen face.
We review the admission of relationship evidence under Minn. Stat. § 634.20 for
an abuse of discretion. State v. Matthews, 779 N.W.2d 543, 553 (Minn. 2010). The
statute provides:
Evidence of domestic conduct by the accused against the victim of domestic conduct, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Minn. Stat. § 634.20. Domestic conduct includes evidence of domestic abuse and
violation of an OFP. Id. The statutory definition of domestic abuse includes physical
harm, bodily injury, or assault committed by a family or household member against
another family or household member. Minn. Stat. § 518B.01, subd. 2(a)(1) (2014).
West argues that the OFP violation here was not similar to the prior assault of A.L.
that the state offered as relationship evidence. A previous version of section 634.20 used
the term “similar conduct” in place of “domestic conduct.” State v. Fraga, 864 N.W.2d
615, 627 n.12 (Minn. 2015). Although the statute was amended in 2013 to replace
“similar conduct” with “domestic conduct,” the supreme court has noted that “the 2013
amendment did not change the underlying definition.” Id. Indeed, the definition of
6 “domestic conduct” in the current statute is identical to the definition of “similar
conduct” in the previous version of the statute. Compare Minn. Stat. § 634.20 (2014),
with Minn. Stat. § 634.20 (2012). The evidence of West’s prior OFP violations and
physical harm to A.L. therefore meets the definition of domestic conduct under the
statute. In any event, the evidence of West’s prior domestic conduct was similar to the
charged crime because the relationship evidence involved West’s violations of OFPs.
West also argues that the probative value of the relationship evidence was
substantially outweighed by its potential for unfair prejudice. The district court
determined that the relationship evidence was probative and admissible. The district
court was more hesitant to admit the photographs into evidence and acknowledged that
they were “a little closer to the line.” The prosecutor stated that he intended to introduce
the photographs to show the context of the relationship between West and A.L. and
because West’s theory of the case was that A.L. contacted him first. The district court
ultimately allowed the photographs into evidence, concluding that the photographs were
more probative than prejudicial for the purposes of showing the context of the
relationship.
The Minnesota Supreme Court has stated that evidence of prior domestic abuse “is
evidence of prior conduct between the accused and the alleged victim and it may be
offered to illuminate the history of the relationship, that is, to put the crime charged in the
context of the relationship between the two.” State v. McCoy, 682 N.W.2d 153, 159
(Minn. 2004). “[T]he interests of justice are best served by admitting relationship
evidence when it provides context for the crime charged.” Matthews, 779 N.W.2d at 553
7 (quotation omitted). Allowing the relationship evidence here was probative because, as
the district court determined, it provided the jury with context of the relationship between
West and A.L. It provided a context for the charged crime by illustrating the history of
domestic abuse and OFP violations that existed in their relationship. Although the
district court acknowledged a potential for unfair prejudice when it admitted the
relationship evidence, the district court was careful to take the necessary step to ensure
that the jury would not use the evidence for an impermissible purpose by giving a
cautionary instruction, specifically warning the jury that it could not convict West of the
charged crime on the basis of his prior assault of A.L. See State v. Riddley, 776 N.W.2d
419, 428 (Minn. 2009) (“We presume a jury follows a court’s cautionary instruction.”).
Because the relationship evidence here falls within the statutory definition of domestic
conduct and because the probative value outweighed its danger for unfair prejudice, the
district court did not abuse its discretion by allowing the state to introduce it.
III.
West argues that the district court abused its discretion by allowing evidence that
A.L. had a confidential address and was in the Safe at Home program. A.L. testified that
she lived in Washington County and that she had a confidential address through the Safe
at Home program because of West. The Safe at Home program provides address
confidentiality for victims of domestic violence and enables them “to use an address
designated by the secretary of state as a substitute mailing address for all purposes.”
Minn. Stat. § 5B.01 (2014).
Minnesota law provides alternative venues for prosecuting OFP violations:
8 A person may be prosecuted [for violating an OFP] at the place where any call is made or received or, in the case of wireless or electronic communication or any communication made through any available technologies, where the actor or victim resides, or in the jurisdiction of the victim’s designated address if the victim participates in the address confidentiality program established under chapter 5B.
Minn. Stat. § 518B.01, subd. 14a (2014). Although West argues that A.L.’s testimony
that she had a confidential address was irrelevant, it was relevant as a possible way to
establish venue under the statute. West could have stipulated to venue. But he instead
exercised his right to have the state prove venue beyond a reasonable doubt. See State v.
Ehmke, 752 N.W.2d 117, 120 (Minn. App. 2008) (“Venue is an element of an offense
that must be proved beyond a reasonable doubt.”). The state was therefore entitled to
elicit this testimony as a possible way to establish venue under the statute.
IV.
West argues that the district court committed reversible plain error by allowing the
state to introduce evidence that West was incarcerated when Deputy Schmidtke served
him with the OFP. Because West did not object to Deputy Schmidtke’s testimony, we
review for plain error. Taylor, 869 N.W.2d at 15. West again must show that there was
(1) an error, (2) that the error was plain, and (3) that it affected his substantial rights. Id.
West asserts that “[t]here was no legitimate reason for the jury to learn West was
incarcerated.” But the state was required to prove that West knew of the OFP in order to
prove that he was guilty of the crime. See Minn. Stat. § 518B.01, subd. 14(b). The state
therefore needed to elicit testimony from Deputy Schmidtke that he served West with the
OFP. Although West argues that the state could have established this element of the
9 crime simply by having Deputy Schmidtke testify that he served West with the OFP, this
apparently was not possible under the circumstances. Deputy Schmidtke testified that he
is a civil-process deputy. His sole duty is serving documents that are required to be
served by the sheriff’s office. When asked about the day he served West with the OFP,
Deputy Schmidtke testified that he remembered serving one or more inmates at the
correctional facility that day, implying that he would not be able to recall serving a
specific individual. Deputy Schmidtke then agreed that if the court record indicates that
he personally served West on that date, it would be accurate because the record would
rely on his affidavit of service. Allowing this testimony was not an error that was plain
because the state needed to elicit this information from Deputy Schmidtke in order to
prove that West knew of the existence of the OFP.
Even if West could show that a plain error occurred, he cannot show that it
affected his substantial rights. To satisfy this prong of the plain-error test, West bears the
“heavy burden” of showing that the error was prejudicial and affected the outcome of his
trial. State v. Griller, 583 N.W.2d 736, 741 (Minn. 1998). Deputy Schmidtke’s
testimony that West was incarcerated could not have affected the outcome of the trial
because several text messages that West sent to A.L. referenced his being in prison. In
one text message, West wrote, “God knows that I didn’t come out of prison for this.” In
another, West wrote, “Put myself back in prison to show that that’s a lie by you . . . .”
From the text messages admitted into evidence, the jury already knew that West had been
in prison. West therefore was not prejudiced by Deputy Schmidtke’s brief testimony that
he served West at a correctional facility.
10 V.
West argues that the district court abused its discretion by ruling that the
prosecutor could impeach him with prior convictions if he chose to testify. The district
court ruled that the prosecutor could impeach West with his convictions of check forgery,
felony violation of a no-contact order, and first-degree burglary if he testified, although
the prosecutor would be allowed to refer to the conviction of violating the no-contact
order only as an unspecified felony. West concedes that the check-forgery conviction
was admissible to impeach him but challenges the district court’s decision with respect to
the other two convictions.
Evidence that a witness has been convicted of a felony is admissible for attacking
the witness’s credibility if “the court determines that the probative value of admitting this
evidence outweighs its prejudicial effect.” Minn. R. Evid. 609(a)(1). “When evaluating
whether prior convictions are admissible for impeachment, a court considers five factors
set out in State v. Jones, 271 N.W.2d 534, 537-38 (Minn. 1978).” State v. Swanson, 707
N.W.2d 645, 653 (Minn. 2006). Those factors are:
(1) the impeachment value of the prior crime, (2) the date of the conviction and the defendant’s subsequent history, (3) the similarity of the past crime with the charged crime (the greater the similarity, the greater the reason for not permitting use of the prior crime to impeach), (4) the importance of defendant’s testimony, and (5) the centrality of the credibility issue.
Jones, 271 N.W.2d at 538. We review a district court’s ruling on the admissibility of
prior convictions for impeachment of a defendant for a clear abuse of discretion.
Swanson, 707 N.W.2d at 654.
11 A. Impeachment Value of Prior Crime
The district court found that West’s prior convictions had impeachment value.
“[A] prior conviction can have impeachment value by helping the jury see the whole
person of the defendant and better evaluate his or her truthfulness.” Id. (quotation
omitted). When impeaching with convictions that do not involve dishonesty or false
statements, “it is the general lack of respect for the law, rather than the specific nature of
the conviction, that informs the fact-finder about a witness’s credibility.” State v. Hill,
801 N.W.2d 646, 652 (Minn. 2011). “In other words, any felony conviction is probative
of a witness’s credibility, and the mere fact that a witness is a convicted felon holds
impeachment value.” Id. Because the felonies were probative of West’s credibility, this
factor favored admission.
B. Date of Conviction and Appellant’s Subsequent History
A conviction is generally not admissible to impeach the credibility of a witness if
more than ten years have elapsed since the date of the conviction. See Minn. R. Evid.
609(b). West’s no-contact-order violation and burglary conviction are both from 2011.
The district court found that “[t]he date and subsequent history regarding each of those
convictions falls well within the appropriate limits to allow admission of that
impeachment.” Because the impeachment convictions occurred within ten years, this
factor weighed in favor of admission.
C. Similarity of Past Crime with Charged Crime
“The more similar the alleged offense and the crime underlying a past conviction,
the more likely it is that the conviction is more prejudicial than probative.” Swanson, 707
12 N.W.2d at 655. The Minnesota Supreme Court has held that Minn. R. Evid. 609(a)
allows a party to impeach a witness with unspecified felony convictions. Hill, 801
N.W.2d at 652. The decision regarding whether to disclose the nature of the
impeachment conviction “remains within the sound discretion of the district court.” Id.
The burglary conviction was not similar to the charged crime of violating an OFP. The
district court ruled that the state would only be allowed to refer to West’s conviction of
violating the no-contact order as an unspecified felony. The district court acted well
within its discretion to make this decision because violating a no-contact order and
violating an OFP are similar in that they both prohibit contact with a protected person.
This factor favored admission.
D. Importance of West’s Testimony and Centrality of Credibility
The fourth and fifth Jones factors are often analyzed together. See Swanson, 707
N.W.2d at 655 (grouping the fourth and fifth Jones factors together); State v. Gassler,
505 N.W.2d 62, 67 (Minn. 1993) (same). “If credibility is a central issue in the case, the
fourth and fifth Jones factors weigh in favor of admission of the prior convictions.”
Swanson, 707 N.W.2d at 655. The district court determined that credibility was “very
much an issue” in the case. Credibility was central to the case because West likely would
have denied being guilty of violating the OFP if he had testified, thereby forcing the jury
to make a credibility determination. These factors therefore weighed in favor of
admission.
13 On balance, the Jones factors weighed in favor of admitting the prior convictions
for impeachment purposes. Therefore, the district court did not abuse its discretion by
allowing the prosecutor to use them to impeach West had he chosen to testify.
VI.
West contends that the cumulative effect of these alleged errors deprived him of
his due-process right to a fair trial. The Minnesota Supreme Court has held that, “in rare
cases, that the cumulative effect of trial errors can deprive a defendant of his
constitutional right to a fair trial when the errors and indiscretions, none of which alone
might have been enough to tip the scales, operate to the defendant’s prejudice by
producing a biased jury.” State v. Davis, 820 N.W.2d 525, 538 (Minn. 2012) (quotation
omitted). But because West has not established even one error, plain or otherwise, there
can be no cumulative error. We conclude that West was not deprived of his right to a fair
trial.
Affirmed.